Sephora Australia Pty Ltd

[2015] FWCA 490

[2015] FWCA 490

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Sephora Australia Pty Ltd
(AG2014/10107)

SEPHORA PTY LTD ENTERPRISE AGREEMENT 2014

Retail industry
COMMISSIONER BULL	SYDNEY, 21 JANUARY 2015

Application for approval of the Sephora Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for the approval of an enterprise agreement known asthe Sephora Pty Ltd Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] On 10 December 2014, the Commission wrote to the applicant via its legal representative with respect to the concerns it had with the Agreement. In particular, the concerns related to the accrual of annual leave, cashing out of annual leave, personal leave, and weekend and public holiday penalty rates.

[3] Correspondence was received from the applicant on 12 December and 22 December 2014.

[4] A conference was held before the Commission on 14 January 2015, with regard to the Commission advising weekend penalty payments under the Agreement.

[5] During the conference the Commission noted a concern that employees working on weekends were only entitled to a penalty payment under the Agreement where the shift was to exceed 4 hours.

Undertakings

Penalties for weekends and public holidays

[6] With respect to clause 8 – Payments for work on weekends and public holidays, and in particular, sub clauses 8.2 and 8.6, the Commission noted that penalty payments for weekend work and public holidays were less than penalty rates provided for under the Award. The Commission requested correspondence to demonstrate how employees were better off overall with a lesser penalty payment provided under the Agreement as opposed to a penalty rate under the Award.

[7] The applicant submits that employees are afforded a higher hourly rate of pay which compensates for the lesser penalty rates under the Agreement. The applicant has provided a number of calculations and indicative rosters to demonstrate this.

[8] With respect to sub clause 8.2(b), the applicant has provided an undertaking to increase the Sunday penalty payment from $100 to $120, to employees who complete a Sunday shift which exceeds 4 hours.

[9] The applicant, at the request of the Commission has also provided an undertaking that the minimum engagement period for all full time, part time and casual employees covered by the Agreement is 4 hours for any shift.

[10] With respect to sub clause 8.6, the applicant has provided an undertaking to increase the public holiday penalty payment from $120 to $150 for all full time, part time and casual employees covered by the Agreement who earn less than $59,000 per annum as gazetted in the State or Territory at which the employee works.

[11] With respect to the better off overall test, the applicant has submitted an undertaking that during the term of the Agreement, the applicant will conduct an annual review of overall earnings for employees covered by the Agreement as compared to any applicable modern award to ensure that employees are better off overall under the Agreement.

[12] Upon review of the rosters, calculations and undertakings in relation to penalties, I am satisfied that despite the reduced penalties, employees would be better off overall under the Agreement.

Annual leave

[13] Upon request from the Commission, the applicant has provided an undertaking with
respect to clause 11.2 - Annual Leave, that annual leave accrue progressively during a year of service according to the employee’s ordinary hours of work, as per s.87(2) of the Act.

[14] A further undertaking has been submitted by the applicant with respect to clause 11.2 – Annual Leave, stating that “the election to cash out untaken accrued annual leave is subject to a separate agreement in writing as between Sephora and the employee; and that the full amount will be payable to the employee under the Agreement as if the employee had taken the accrued annual leave, as set out in s.93(2) of the Act”.

Personal leave

[15] Upon request from the Commission, the applicant has provided an undertaking with respect to clause 11.4 - Personal Leave, stating that “Personal leave will accrue progressively during a year of service according to the ordinary hours of work and in accordance with s.96(2) of the Act.”

[16] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A. 

[17] The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement as per s.190(3)(b) of the Act. 

[18] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[19] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 28 January 2015. The nominal expiry date of the Agreement is 28 January 2019.

[20] This decision is to be brought to the attention of employees by the applicant.

COMMISSIONER

Annexure A

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